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Where a person believes that they have been unlawfully discriminated against that person can lodge a written complaint with the Australian Human Rights Commission (AHRC) (s46PAustralian Human Rights Commission Act 1986 (Cth) (AHRC Act)). The AHRC will inquire into the complaint and try to resolve the complaint through conciliation. The AHRC may investigate a complaint without a specific person complaining, if it appears to the Commission that a breach of the Act has occurred.

How to make a complaint

The right to lodge a written complaint is governed by section 46P of the AHRC Act. The AHRC process requires a complaint to be made in writing or by email. Complaints can be made in any language, although whether this extends to dead languages or Klingon is not clear.

Powers of the President of the Commission to terminate a complaint

Not all complaints will reach conciliation. Some complaints will be withdraw, whilst some other complaints will be terminated. The President may terminate a complaint if satisfied that the complaint:

  • does not involve discrimination;
  • was lodged more than 12 months after the alleged unlawful discrimination took place;
  • is trivial, vexatious, misconceived or lacking in substance;
  • involves subject matter that has already been adequately dealt with;
  • would be more appropriately resolved in another forum or by another statutory authority;
  • involves subject matter that would be more appropriately dealt with by the Federal Court or Federal Circuit Court; or
  • has no reasonable prospect of being resolved by conciliation.

Dealing with a Complaint

When a complaint concerning a breach of the Act is received, the AHRC will inquire into it. If it appears to have some basis, the AHRC will arrange for a conciliation conference to be held, to try to resolve the complaint. The Commissioner may call a compulsory conference and direct all necessary persons to attend. A person who fails to obey this direction, without reasonable excuse, is liable for a fine.

The Commissioner has power to obtain information and documents to investigate a complaint.

Where the President of the AHRC decides not to inquire into the complaint the President must give notice in writing to the complainant. When the complainant has a notice of termination, they may then lodge an application with the Federal Court to have their matter determined. Whether or not the application can be heard depends on the nature of the complaint, and whether the facts constitute an unlawful discrimination under the anti-discrimination Acts.

What can complaints be about?

The AHRC has the power to investigate and resolve complaints of human rights breaches, discrimination, harassment, and bullying where it manifests as:

  • sex discrimination arising from pregnancy, marital status, breastfeeding, family responsibilities, as well as sexual harassment;
  • disability discrimination including a broad range of disability types, physical, psychiatric, permanent or temporary, past, future or present, and includes association with a person with a disability;
  • race discrimination, including colour, descent, national or ethnic origin, immigrant status, or racial hatred
  • age discrimination against young and older people
  • employment discrimination relating to sexual preference, criminal record, trade union activity, political opinion, religion or social origin.

These complaints can be made under the Racial Discrimination Act, the Sex Discrimination Act, the Disability Discrimination Act, or the Age Discrimination Act.

Human Rights complaints

Under section 20 of the AHRC Act, the Commission can make an inquiry into a written complaint alleging that any act or practice is inconsistent with or contrary to any human right. Human rights are many and diverse, and are defined as ‘the rights and freedoms recognised in the Covenant, declared by the Declarations or recognised or declared by any relevant international instrument.

The AHRC Act defines relevant international instruments as those to which Australia is a party. Declarations are limited to the Declarations on the Rights of the Child, the Rights of Mentally Retarded Persons, and Rights of Disabled Persons, the International Covenant on Civil and Political Rights, and the Convention Concerning Discrimination in respect of Employment and Occupation.

The AHRC is not restricted to investigating discrimination but, as its title suggests, can investigate, instigate conciliation procedures, and make reports on a wide variety of human rights violations in accordance with section 20.

Protection for Complainants

It is an offence to victimise a person who makes a complaint, is intending to make a complaint, or provides assistance to a complainant, under all four discrimination Acts. Victimisation takes the form of a detriment to another person, such as threats, violence, or disadvantage in employment. The provisions in the anti-discrimination acts (s27(2), (RDA)s94, (SDA)s42 (DDA)s51 (ADA)) make it an offence to subject a person to any detriment on the grounds of making a complaint or assisting someone who has made or intends to make a complaint, and several other grounds. The RDA specifically states it is an offence to:

  • refuse to employ another person,
  • dismiss or threaten to dismiss another person;
  • prejudice, or threaten to prejudice another person;
  • intimidate, coerce, or impose a penalty another person
  • because that person intends to make a complaint under the Act, or who assists someone who has made, or is about to make, a complaint (s27(2)).

The phrasing of the DDA and the SDA provisions are substantially similar, referring to victimization as causing any detriment, whilst the ADA also uses similar wording (s51(2), ADA). Penalties include imprisonment or substantial fines.

What is the complaint process?

The AHRC uses conciliation as its means of resolving disputes. Conciliation involves an impartial third party who helps the people involved in the dispute talk through the issues of discrimination. Most feedback on the conciliation process indicates that it is a positive and effective means of facilitating dispute resolution, as the individuals involved can settle the matter on their own terms.

The AHRC provides a comprehensive overview of the conciliation process.

Conciliation is not like a court hearing. It is informal, and can involve face-to-face meetings, telephone conferencing, or even the exchange of letters or messages through the conciliator. Conciliation is a flexible process, meant to facilitate a resolution between parties, rather than impose a decision from outside.

What are the likely outcomes?

The most recent AHRC conciliation statistics available, for the 2007-2008 period, indicate that 74 per cent of the complaints conciliated in that period were successfully conciliated. This means that one or all of the following eventuated as an outcome:

  • an apology
  • reinstatement to a job
  • compensation
  • changes to discriminatory policy
  • the promotion of anti-discrimination policies

Is there more that the AHRC can do?

Whilst the AHRC must take reasonable steps to provide appropriate assistance to a complainant (s46P, AHRC Act), there is nothing more the AHRC can do if a complaint is terminated, or the conciliation is unsuccessful. The AHRC only offers conciliation. If a complaint cannot be conciliated, it may decided by a Court.

Time limits

A complaint must be lodged within 12 months from the date of the alleged unlawful discrimination (s46PH, AHRC Act), or the AHRC President has the power to terminate the complaint.

Time for resolution

Complaints are usually resolved with 3-6 months. However 12 months is not unusual. Anything over 12, and up to 24 months is highly irregular, but can occur. Latest statistics on conciliation indicate that 51% of complaints are resolved within 6 months and 93% of complaints are resolved within 12 months.

Costs

There are no costs associated with making a complaint to the AHRC, however there are some costs associated with the conciliation process if a person wants a legal representative present during the process.

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